American Broadcasting Cos. v. Aereo, Inc.
The Court ruled that Aereo, a service that let subscribers watch broadcast television over the internet using thousands of dime-sized individual antennas, was illegally performing copyrighted programs to the public without paying for the right to do so.
The decision found Aereo's technology so similar to cable television that it had to follow the same copyright rules, even though Aereo argued its system was more like renting each customer a personal antenna and DVR.
“Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here.”
The majority's explanation for why Aereo's individual antennas don't change the copyright analysis.
How it got here: A federal trial court denied the networks a preliminary injunction against Aereo, the Second Circuit affirmed, and the networks asked the Supreme Court to review that decision.
The Case in Depth
What happened
Aereo sold subscribers a way to watch local over-the-air television, including copyrighted network shows, on their computers and phones almost in real time. Its system used thousands of tiny antennas, each assigned to one subscriber, to capture the broadcast signal and stream it to that subscriber alone. Television networks and broadcasters that own the copyrights sued Aereo, claiming this violated their exclusive right to perform their programs publicly.
The question before the Court
Could an internet TV service that streams over-the-air broadcasts to subscribers, each through their own tiny personal antenna, avoid copyright liability by claiming it was really the viewer, not the service, doing the broadcasting?
Why it matters
Television networks keep the ability to demand licensing fees from services that retransmit their broadcasts, protecting a major revenue stream. Aereo itself soon went out of business after the ruling. Streaming and cloud-technology companies were left watching closely, since the Court insisted its ruling was narrow but did not spell out exactly which future services would count as similar enough to cable TV.
What changes now
The case goes back to the lower courts, which must now apply the Supreme Court's conclusion that Aereo performs publicly to the rest of the litigation, including whether a permanent injunction should issue and how the networks' remaining claims should be resolved. This is a final ruling on the legal question presented, not a temporary order, though it leaves several downstream questions about cloud computing and remote-storage services for future cases.
What this does not decide
The Court said its holding was limited to services like Aereo that closely resemble cable systems, and explicitly did not decide how copyright law applies to cloud computing, remote-storage DVRs, or other technologies not before it, leaving those questions for future cases.
Concurrences and dissents
Dissent — Justice Scalia
“Rather, it is akin to a copy shop that provides its patrons with a library card.”Scalia's central metaphor for why Aereo should not be directly liable for infringement.
Justice Scalia argued Aereo cannot be directly liable because it never chooses what content plays - subscribers do, much like a copy shop that lets customers pick what to photocopy rather than curating content itself. He would have applied the established 'volitional-conduct' test used by every court of appeals, under which Aereo does not perform because its automated system merely responds to user commands. He criticized the majority's 'looks-like-cable-TV' reasoning as an improvised standard resting on thin legislative history and offering no clear line for future cases, and would have affirmed the Second Circuit, leaving the networks free to pursue secondary-liability and reproduction claims instead.
How the Court got there
The legal reasoning, step by step
- The Court looked to why Congress rewrote the Copyright Act in 1976: mainly to overturn earlier Supreme Court rulings that cable-TV-like services were merely helping viewers use antennas, not themselves broadcasting, and so owed nothing to copyright holders.
- Congress rewrote the law's definitions so that both the original broadcaster and anyone retransmitting the signal count as 'performing' the work, and specifically added the Transmit Clause, which says an entity performs when it sends a program 'to the public' by any device or process.
- Because Aereo's setup - capturing broadcast signals and streaming them to paying subscribers who have no other connection to the programming - closely mirrors what cable systems do, the Court treated Aereo as a performer rather than merely an equipment supplier, even though its system uses individual antennas that sit idle until a subscriber clicks 'watch.'
- Turning to whether Aereo performs 'to the public,' the Court reasoned that transmitting the same show to many unrelated paying subscribers counts as a performance to the public even if each transmission technically uses a separate antenna, a separate personal copy, and reaches only one person at a time.
- The Court concluded that the behind-the-scenes technical details Aereo relied on - individual antennas, personal copies, one-to-one transmissions - do not change the fact that Aereo, like a cable company, delivers copyrighted broadcasts to a large group of unrelated paying customers, so it performs those works publicly under the Transmit Clause.
Doctrinal impact
Cases affected by this decision
Distinguishes Fortnightly Corp. v. United Artists Television, Inc. (392 U. S. 390)
The Court found Aereo's service close enough to this old cable case to reach the opposite result under the amended statute.
Distinguishes Teleprompter Corp. v. Columbia Broadcasting System, Inc. (415 U. S. 394)
The Court treated this cable-retransmission case as legislatively overruled by the 1976 Copyright Act amendments.